Untimely Filing Costs Successful Plaintiff its Costs

In July of 2012, the Federal Circuit largely affirmed a decision by the CFC to award over $10.6 million in breach of contract damages stemming from the Government’s failure to accept spent nuclear fuel from the owners of the Wolf Creek Generating Station in Coffey County, Kansas. On remand, the CFC entered a revised judgment in favor of the utility companies.

Under the CFC’s Rules, costs to the prevailing party are recoverable if the bill of costs is filed within 30 days of final judgment. But in this case, an unusual procedural wrinkle arose—the Federal Circuit had not remanded the case back to the CFC before the CFC entered its revised judgment. So the utility companies reasoned that the time to file an appeal was 90 days—the period of time in which the Government could file a petition for certiorari to the U.S. Supreme Court—from the entry of the CFC’s final judgment.

marzulla.co m http://www.marzulla.co m/untimely-filing-co sts-successful-plaintiff-its-co sts/Untimely Filing Costs Successful Plaintiff its Costs In July of 2012, the Federal Circuit largely af f irmed a decision by the CFC to award over $10.6 million in breach of contract damages stemming f rom the Government’s f ailure to accept spent nuclear f uel f rom the owners of the Wolf Creek Generating Station in Cof f ey County, Kansas. On remand, the CFC entered a revised judgment in f avor of the utility companies. Under the CFC’s Rules, costs to the prevailing party are recoverable if the bill of costs is f iled within 30 days of f inal judgment. But in this case, an unusual procedural wrinkle arose—the Federal Circuit had not remanded the case back to the CFC bef ore the CFC entered its revised judgment. So the utility companies reasoned that the time to f ile an appeal was 90 days—the period of time in which the Government could f ile a petition f or certiorari to the U.S. Supreme Court—f rom the entry of the CFC’s f inal judgment. But the trial court held that the bill of costs was due much earlier. Without specif ying what date the bill of costs was actually due, the Court f ound that under any reasonable interpretation of the rules, the bill of costs was f iled too late: The only confusion that Plaintiffs cite was the question on what date judgment in the case became final and not appealable, thus triggering the 30–day time for filing a BOC under RCFC 54: whether, because there was no actual remand, they should have counted 90 days from the Federal Circuit’s October 1, 2012, denial of the Government’s motion for panel rehearing on the overhead issue, when the Government’s opportunity for certiorari would be over; or whether the RCFC [54’s] 30– day period was to start running once 60 days—the time for appealing again to the Federal Circuit— had passed from the entry of the revised judgment in the trial court, that is, from November 1, 2012. Either way, however, Plaintiffs’ deadline for filing their BOC had passed prior to their having filed it on February 6, 2013. Notably though, the CFC also f latly rejected the Government’s argument that it had no authority to extend the time f or a bill of costs, but here the CFC f ound that the delay was not excusable and granted the Government’s motion to dismiss the bill. The case is Kansas Gas & Electric Co. v. United States. The inf ormation and materials on this web site are provided f or general inf ormational purposes only and are not intended to be legal advice. The law changes f requently and varies f rom jurisdiction to jurisdiction. Being general in nature, the inf ormation and materials provided may not apply to any specif ic f actual or legal set of circumstances or both.

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